IN THE SUPREME COURT OF OHIO

BRUCE E. BERGER,

Plaintiff/Appellee,

LU-JEAN FENG,

Defendant/Appellant.

In re CONTEMPT OF LU-JEAN FENG )

On Appeal from theCuyahoga County Courtof Appeals, EighthAppellate District

Court of AppealsCase No. CA-10-095749

MEMORANDUM IN SUPPORT OF JURISDICTIONOF APPELLANT LU-JEAN FENG

COUNSEL FOR APPELLANT, LU-JEAN FENG:

William T. Wuliger, Esq. (#0022271) (COUNSEL OF RECORD)1340 Sumner CourtBrownell BuildingCleveland, OH 44115(PH) 216-781-7777(FX) 216-781-0621wwuligergwtwuli serlaw.com

Joyce E. Barrett800 Standard Building1370 Ontario StreetCleveland, OH 44113(PH) 216-696-1545(FX) 216-696-2104joyceebarrett cr earthlink.net

Michael J. MaillisPerantinides & Nolan80 South Summit StreetAkron, OH 44308(PH) 330-253-5454(FX) 330-253-6524mmailliskperantinides. com G^E C^^V ^DD

JAN 1,2 2012

CLERK OF COURTSUPREME COURT OF OHIO

D

JAN 12 Z912

CLERK OF COURTSUPREME COURT OF OHIO

12 - ®'0 57

COUNSEL FOR APPELLEE, BRUCE E. BERGER:

Joseph G. Stafford, Esq. (#0023863)Gregory J. Moore, Esq. (#0076156)55 Erieview Plaza, 5th FloorCleveland, OH 44114(PH) 216-241-1074(FX) 216-241-4572JGS AStafford-Stafford.comGJMDa.Stafford-Stafford.com

COUNSEL FOR APPELLEE, CUYAHOGA COUNTY DOMESTIC RELATIONS COURT:

William D. MasonCuyahoga County Prosecutor9''Floor Justice Center1200 Ontario StreetCleveland, OH 44113(PH) 216-443-7800(FX) 216-698-2270p4wdm2cuyahogacounty.us

GUARDIAN AD LITEM.•

Barbara A. BelovichKronenberg & Belovich Law635 West Lakeside Ave., Suite 605Cleveland, OH 44113(PH) 216-426-2970(FX) 216-404-5958

bbelovieh(a^k-blaw. com

TABLE OF CONTENTS

THIS CASE PRESENTS A SUBSTANTIAL CONSTITUTIONAL QUESTIONOVER WHICH JURISDICTION IS APPROPRIATE PEROHIO SUPREME COURT PRACTICE RULE 2.1(A)(2) .................. .............................1

THIS CASE ALSO PRESENTS A QUESTION OF PUBLIC OR GREAT GENERALINTEREST OVER WHICH JURISDICTION IS APPROPRIATE PER OHIOSUPREME COURT PRACTICE RULE 2.1(A)(3) .......................................................2

STATEMENT OF THE CASE AND FACTS ............................................................2

ARGUMENT IN SUPPORT OF PROPOSITION OF LAW ............................................5

The U.S. and Ohio Constitutions mandate that alleged contemnors in directcontempt cases be afforded due process protections of notice and an opportunityto defend when any of the essential elements are not personally observed by thejudge and/or there is no imminent threat to the administration of justice.

CONCLUSION ... ... . . . .. . . ..... ... . . . .... . . ...... ...... . .. ... . . .... . .. ... . ..... .. . ... ... . . . .. . ... . . ... ......15

APPENDIX

Opinion of the Eighth District Court of Appeals (Sep. 22, 2011)

Judgment Entry denying Petition for Rehearing en Banc (Nov. 9, 2011),

Judgment Entry denying Motion for Reconsideration (Dec. 5, 2011)

Judgment Entry denying Motion to Certify Conflict (Dec. 16, 2011)

Judgment Entry (Cuyahoga County C.P., Dom.Rel.) finding contempt (Sep. 21, 2010)

iii

THIS CASE PRESENTS A SUBSTANTIAL CONSTITUTIONAL QUESTION OVERWHICH JURISDICTION IS APPROPRIATE PER OHIO SUPREME COURT

PRACTICE RULE II, SECTION 1(A)(2).

The Ohio Constitution provides for appellate jurisdiction of the Supreme Court "[i]n

appeals from the courts of appeals as a matter of right in...[c]ases involving questions arising

under the Constitution of the United States or of this state." Article IV, Section 2(b)(2)(a)(iii).

Accord S.Ct.Prac.R. 2.1(A)(2) ("An appeal that claims a substantial constitutional question, ...

may invoke the appellate jurisdiction of the Supreme Court and shall be designated a claimed

appeal of right."). The Eight District Court of Appeal's decision affirming the direct civil

contempt finding against Appellant in this case qualifies as a claimed appeal of right, as it plainly

presents a question of constitutional magnitude under both the federal and state constitutions

which has never been directly addressed by this Court:

Are alleged contemnors in direct contempt cases entitled to the due processprotections of notice and an opportunity to defend when one or more of theessential elements of the offense are not personally observed by the judge?

Appellant was held in summary contempt, without notice or an opportunity to be heard,

based on facts not personally known to the judge, in violation of both the Fourteenth Amendment

of the United States Constitution and Article I, Section Sixteen of the Ohio Constitution. The

appellate court's affirmance of the contempt finding is based on its conclusion that, when

allegedly contumacious conduct occurs outside of the court's physical presence, whether the

contemnor is entitled to the constitutional due process protections of notice and an opportunity to

be heard depends entirely on the judge's subjective determination of whether to characterize the

contempt as direct or indirect. Review of such a decision by this Court plainly falls under

Section (2)(B)(2)(a)(iii), Article IV, Ohio Constitution, "Claimed Appeal of Right."

I

THIS CASE PRESENTS A QUESTION OF PUBLIC OR GREAT GENERAL INTERESTOVER WHICH JURISDICTION IS APPROPRIATE PER OHIO SUPREME COURT

PRACTICE RULE II, SECTION (1)(A)(3).

Even if this Court determines that it has already conclusively spoken on the question

esented herein, this Court should still exercise jurisdiction over this case as a "discretionaryp

appeal." Pursuant to Rule 2.1 (A)(3) of the Rules of Practice of the Supreme Court of Ohio, a

discretionary appeal is one that invokes the discretionary jurisdiction of the Supreme Court of

Ohio and is available for appeals involving questions of public or great general interest.

As demonstrated herein, there is a split in appellate authority in this state regarding the

due process protections applicable to contemnors charged with contempt designated as; "direct"

by the trial court but committed in the constructive - not physical - presence of the court (i.e., of

which the judge lacks personal knowledge). Not only are cases between various districts

addressing this issue inherently inconsistent, but in some instances, so, too, are cases within a

single appellate district. Thus, any prior, dispositive pronouncement of law by this Court has

clearly not been uniformly interpreted. The result is disparate treatment among similarly-

situated citizens appearing before the courts of this state, depending on the location of the court

and/or the whim of the particular judge presiding. The Eighth District Court of Appeals'

decision in this case allows judges to circumvent the constitutional rights of citizens simply by

arbitrarily designating conduct occurring outside of their presence as "direct contempt".

Accordingly, this case presents a question of public or great general interest.

STATEMENT OF THE CASE AND FACTS

Appellant Lu-Jean Feng ("Dr. Feng") is embroiled in multiple legal disputes pending in

the Cuyahoga County Common Pleas Court with her ex-husband, Bruce E. Berger ("Dr.

Berger"), including an ongoing custody battle (Berger v. Feng, Case No. DR-O1-27992) and two,

2

consolidated domestic violence cases (Case Nos. DV-10-333284 and DV-10-333399). In 2009,

a dispute regarding whether the parties' then fifteen-year-old son would attend an out-of-state

boarding school. Dr. Feng moved to modify parental rights, contending that Berger's intention

to send their son to an out-of-state school would infringe on her parenting time and violate her

and her son's rights. That fall, while Dr. Feng's motion was pending, against the wishes of her

and her son, and in violation of a restraining order precluding him from removing the child from

the court's jurisdiction, Dr. Berger unilaterally enrolled the child in the Hyde School - a

Connecticut boarding school which emphasizes behavior over academics. I

A few months later, the Magistrate conducted an interview with the child, who testified

that he was subjected to "constant bullying" at Hyde and threatened to run away if forced to

return. Notwithstanding the child's wishes, in June 2010, the magistrate recommended that Dr.

Feng's motion be denied. Dr. Feng filed objections, and on August 26, 2010, the trial court

issued an order that the existing order regarding allocation of parental rights (including an

alternating weekend possession schedule which was inconsistent with sending the child _to an

out-of-state boarding school) would remain in effect pending a final determination.

Less than two weeks later, however, Dr. Berger sought and obtained an ex parie

protection order in Case No. DV-10-333284 specifically authorizing him to send the child back

to Hyde. In his DV petition, Dr. Berger represented that the child was "scheduled to return to the

Hyde School," and alleged that Dr. Feng was committing domestic violence by preventing him

from attending school "as ordered by this Court" and by generally undermining Berger's parental

authority.

1 Berger claimed authority under the Shared Parenting Plan (the validity of which is currently thesubject of another pending appeal), which vested him with "final decision making authority" asto specific issues when the parties are unable to agree; Dr. Feng contested his interpretation.

3

The domestic relations court commenced a full hearing on Dr. Berger's petition on

September 20, 2010.2 The next day, the judge interrupted Berger's case-in-chief and summarily

held Dr. Feng in what she characterized as "direct civil contempt" for failure to produce the

parties' son in court as ordered earlier that day. The judge expressly based her order on a finding

that Dr. Feng was not credible when she testified on cross-examination that the boy had run

away, and she did not know his whereabouts.3 Dr. Feng appealed.

On appeal, Dr. Feng raised several assignments of error, including that the trial court

abused its discretion by holding her in summary contempt without notice or an opportunity to

present a defense, despite the fact that the conduct at issue did not occur in the presence of the

trial court. On September 22, 2011, the Cuyahoga County Court of Appeals affirmed the

judgment. While the appellate court agreed that Dr. Feng was denied notice and a hearing, it

nevertheless concluded that the trial court's characterization of the contempt as "direct" obviated

Dr. Feng's entitlement to due process. Majority Op., 2011 Ohio 4810, ¶¶ 41, 44, 45 (citations

omitted). In a dissenting opinion, Judge Stewart reasoned that the trial court's characterization of

the contempt as "direct" was "a misnomer," and therefore its "failure to afford the necessary

hearing was a violation of Feng's right to due process and is reversible error." ld., ¶¶ 63-64.

2 Dr. Feng filed a cross-petition based on Berger's insistence on returning the child to Hydedespite his reports of physical and emotional abuse. Case No. DV-10-333399. Although R.C.3113.31 (D) mandates that the court hold an immediate ex parte hearing and a full hearing within

ten days thereafter, no hearing has ever been conducted on Dr. Feng's cross-DV petition.

3 Although Berger's petition related only to events predating the child's disappearance, testimonyadduced at the hearing thereon established: (a) the child's threat to run away if Berger forced himto return to boarding school, (b) that he was scheduled to return to the school the day before Dr.Berger filed his DV petition, and (c) that he had disappeared the day the petition was filed.Because the trial court suspended the DV proceedings before holding Dr. Feng in summarycontempt, however, Dr. Feng was only permitted to testify on cross and did not have anopportunity to present her own evidence or offer any explanation on any issue. Notwithstanding,representations by counsel for both parties (as well as the guardian ad litem) demonstrate that

there was a dispute of fact regarding whether Dr. Feng knew the child's whereabouts and/or hadthe ability to comply with the trial court's order to produce him.

4

Dr. Feng filed both a petition for rehearing en banc and a motion for reconsideration, in

which she argued that the appellate decision was in conflict with prior decisions of the Eighth

District Court of Appeals (a) uniformly characterizing analogous conduct as indirect contempt

subject to due process requirements, and (b) precluding the use of summary proceedings even in

cases of direct contempt absent both personal knowledge of the underlying facts by the judge

and an imminent threat to the administration of justice. On November 9, 2011, however, the

Court of Appeals denied Dr. Feng's petition for en banc consideration. The appellate court

reasoned that the characterization of contempt as direct or indirect is discretionary to the trial

court, and therefore cases finding that factually analogous conduct constitutes only indirect

contempt do not present a legal conflict with the decision in this case. Regarding the propriety of

summary proceedings in the absence of personal knowledge by the judge and an imminent threat

to justice, the appellate court characterized Dr. Feng's argument as "an error, not a conflict." On

December 5, 2011, Dr. Feng's motion for reconsideration was also denied.

Dr. Feng also filed a motion to certify a conflict to this Court pursuant to Rule 25 of the

Ohio Rules of Appellate Procedure, contending that the appellate courts in this state are in

conflict regarding whether the U.S. and Ohio Constitutions mandate that alleged contemnors in

direct contempt cases be afforded the due process protections of notice and an opportunity to

defend whenever any of the "essential elements of the offense are not personally observed by the

judge," or whether such process is discretionary. See In re Oliver, 333 U.S. 257, 275-76, 68

S.Ct. 499, 92 L.Ed.682 ( 1948) (citing Cooke v. U.S., 267 U.S. 517, 45 S.Ct. 390, 69 L.Ed. 767

( 1925)). Her Rule 25 motion was denied without opinion on December 16, 2011.

ARGUMENTS IN SUPPORT OF PROPOSITION OF LAW

The U.S. and Ohio Constitutions mandate that alleged contemnors in anycontempt proceeding, regardless of whether delineated as direct or indirect, be

5

afforded the due process protections of notice and an opportunity to defend whenany of the essential elements are not personally observed by the judge.

The Eighth District's holding in the case at bar that courts are "not required to deal with

direct contempt by providing the contemnor with a hearing," Majority Op., 2011 -Ohio-48 10, ¶

41 (citing In re Purola, 73 Ohio App.3d 306, 596 N.E.2d 1140 (3`d Dist. 1991))(emphasis

added), mirrors language from two opinions issued by this Court more than half a century ago:

In re Lands, 146 Ohio St. 589, 67 N.E.2d 433 (1946), and State v. Local Union 5760, United

Steelworkers ofAmerica, 172 Ohio St. 75, 173 N.E.2d 331 (1961) 4 These two cases suggest that

when contempt is characterized as direct, compliance with the dictates of due process is

discretionary, regardless of whether the judge has personal knowledge of the underlying facts.

Lands at 595 ("A direct contempt is one committed in the presence of or so near thecourt as to

obstruct the due and orderly administration of justice, and punishment therefor may be imposed

summarily without the filing of charges or the issuance of process." (emphasis added)); Local

Union 5760 at 82 ("Because [the offensive acts charged against the defendants ... constituted

acts of direct contempt of court], the trial judge ... had the power to try [them] summarily...;

[h]owever, it is the better practice, and strongly recommended, that, where a judge has no

personal knowledge of the alleged act of contempt because of its commission beyond his actual

physical presence, [the due process safeguards] outlined in the statute [applicable to indirect

contempt] be adhered to strictly." (emphasis added)).

Notably, however, the syllabi in Lands and Local Union 5760 do not even mention the

propriety and/or constitutionality of the use of summary contempt proceedings, and (unlike Dr.

Feng) the contemnors in both cases were provided with a full evidentiary hearing. It is well

4 In the court of appeals opinion herein, the Majority does not cite directly to Lands or Local

Union 5760. However, it does rely on In re Purola - a Third District appellate case which is

based on those cases. Maj. Op., 2011-Ohio-4810, ¶ 41 (citing Purola at 310).

6

established that, "where the justice assigned to write the opinion discusses matters or expresses

his opinion on questions not in the syllabus, the language is merely the personal opinion of the

writer." State v. Wilson, 58 Ohio St.2d 52, 60, 388 N.E.2d 745 (1926). In fact, even language

appearing in the syllabus is not binding if (as in the case of both Lands and Local Union 5760), it

relates to a constitutional issue that is "not necessary to the disposition of the case" and is based

"upon facts unrelated to the controversy before [the Court]." DeLozier v. Sommer, 38 Ohio 268,

271, 313 N.E.2d 386 (1974). Thus, any language contained in the body of these opinions

suggesting the decision to afford a hearing on charges of direct contempt despite the judge's lack

of personal knowledge is within the trial court's discretion is merely obiter dicta.

Nevertheless, some Ohio appellate courts (including the Eighth District Court of Appeals

in this case) have relied on the dicta in Lands and Local Union 5760 to hold that, in cases of

direct contempt, regardless of whether the contempt is committed in the actual or constructive

presence of the court, the decision to afford an alleged contemnor with due process is a matter

within the court's discretion. See also e.g.'s In re Purola, 73 Ohio App.3d at 310 (citing Lands;

Local Union 5760); Bank One Trust Co., N.A. v. Scherer, 10th Dist. Nos. 06AP-70, 06AP-71,

2006-Ohio-5097, ¶¶ 17-18 (citing Purola; Local Union 5760)(other citations omittea). ine

courts of appeals in several other Ohio appellate districts, however, have ignored the dicta of

Lands and Local Union 5760 and instead followed decisions of the U.S. Supreme Court holding

unequivocally that the due process requirements of notice and an opportunity to present a

defense must be followed in all cases of contempt except for the following limited exception:

"misconduct [committed] in open court, in the presence of the judge, whichdisturbs the court's business, where all of the essential elements of the

misconduct are under the eye of the court, are actually observed by the court,

and where immediate punishment is essential to prevent `demoralization of the

court's authority * * * before the public."'

7

In re Neff, 20 Ohio App.2d 213, 223-24 (5 Dist. 1969) (quoting Oliver, 333 U.S. 257, 275-76)

(emphasis added), and paragraphs nine and ten of the syllabus. Accord In re Davis, 77 Ohio

App.3d 257, 263-64, 602 N.E.2d 270 (2 Dist. 1991) (citing Oliver; Cooke, 267 U.S. 517).

Neff and/or Davis have since been cited by appellate courts in most of Ohio's twelve

appellate districts (including the Eighth) as authority for the proposition that a court's summary

contempt power is subject to at least some constitutional restrictions. In fact, Ohio courts in

numerous Appellate Districts have expressly held, by adopting Neff, Davis or a combination

thereof, that notice and a hearing in direct contempt cases is constitutionally required if the

judge lacks personal knowledge of the underlying offense. See e.g.'s, In re Lodico, 5"' Dist. No.

2003-CA-00446, 2005-Ohio-172, ¶¶ 42-46; In re Thomas, ls` Dist. No. C-030429, 2004-Ohio-

373, ¶ 13; Thompson v. Thompson, 9th Dist. No. 00CA007747, 2001 WL 948715, * 1(Aug. 22,

2001); In re Parker, 105 Ohio App.3d 31, 36-37, 663 N.E.2d 671 (4th Dist. 1995); Toledo v.

Powell, 6s' Dist. No. L-84-123, 1984 WL 14364, *2 (Sept. 14, 1984). Accord State v. Schiewe,

110 Ohio App.3d 170, 173, 673 N. E.2d 941 (6s Dist. 1996) (citations omitted).

By contrast, however, other appellate districts - including the Eighth District in which the

instant case was decided - have generally cited Neff and/or Davis only in dicta to explain the

rationale underlying the general rule that courts are not required to provide notice or an

opportunity to defend in cases involving direct contempt (i.e., because direct contempt usually

occurs in the court's actual presence).5 See e.g.'s State v. Belcastro, 139 Ohio App.3d 498, 501,

5 Significantly, despite its holding in this case and its denial of Dr. Feng's petition for rehearing

en banc, that court has, from time to time, issued opinions inconsistent with its decision in thecase at bar and mandating the constitutional procedural protections at issue herein. See e.^.'s In

re English, 8`h Dist. No. 90417, 2008-Ohio-3671, ¶ 11 (citing Davis); Smith v. Stafford, 8` Dist.

No. 79377, 2001 WL 1669259, *4 (Dec. 27, 2001) (citing Davis); Orlando v. Haggins, 8a' Dist.

Nos. 74299, 74318, 1999 WL 500153, *2 (Jul. 15, 1999) (citing Davis); State v. Butler, 8th Dist.

No. 36385, 1977 WL 201525, *2 (citing Oliver, 333 U.S. 257; Cooke, 267 U.S. 517). In fact, the

8

744 N.E.2d 271 (8" Dist. 2000); State v. Smith, 7`h Dist. No. 01 CA 187, 2002-Ohio-31743002, ¶

9; North Kingsville v. Maddox, 11th Dist. No. 2001-A-0052, 2002-Ohio-7122, ¶ 31; In re

Holbrock, 12`h Dist. No. CA83-09-066, 1985 WL 8692, *6 (Jun. 10, 1985). In other words,

while Neff and Davis hold that a summary proceeding is permissible in direct contempt cases if

(and only if) the court has personal knowledge of the contumacious conduct, courts in the

Seventh, Eighth, Eleventh and Twelfth Appellate Districts have merely held that a summary

proceeding is permissible in direct contempt cases because the court (usually) has personal

knowledge of the contumacious conduct. As the Eighth District stated in Belcastro:

"R.C. 2705.01 allows a court or judge to summarily punish a person guilty ofmisbehavior `in the presence of or so near the court or judge as to obstruct the

administration of justice.' `Direct contempt usually involves some misbehavior

which takes place in the actual courtroom,' and for that reason may be

summarily punished because the facts are directly known by the court.

very judge who wrote the Majority Opinion in this case approving the trial court's use ofsummary contempt proceedings despite the judge's lack of personal knowledge previously wrote

an opinion espousing the opposite conclusion and expressly adopting the constitutional

restrictions set forth in Neffand Davis. After finding that the contemnor's conduct presented a

threat to the administration of justice, Judge Kenneth A. Rocco, writing for the court, stated:

-, , ao^Qi.__,_n e -..nYY."[N]ot every direct contempt justifies summary punishment. In re Loalcu-

No. 2003-CA-00446, 2005-Ohio-172, ¶42. The summary contempt power is anexception to normal due process requirements, and must be confined to circumstances

in which `all of the essential elements of the misconduct are under the eye of thecourt, are actually observed by the court, and where immediate punishment isessential to prevent demoralization of the court's authority before the public.'

Pounder v. Watson (1927), 521 U.S. 982, 988 (quoting In re Oliver (1948), 333 U.S.

257, 275). In this case, the judge did not have personal knowledge of appellant's

misbehavior. *** Appellant was deprived of due process by having been convicted

of direct criminal contempt on the unsworn statements of defense counsel in the

summary proceeding conducted without prior notice and an opportunity topresent a defense. Nor did appellant's misconduct constitute an imminent threat to

the administration of justice. Therefore the court erred by summarily punishing

appellant for direct criminal contempt."

In re Contempt of Gregg, 8s' Dist. No. 85679, 2005-Ohio-4996, ¶ 1 I (internal quotation marks

and footnote omitted) (bold emphasis added).

9

Belcastro, 139 Ohio App.3d 498, 501 (emphasis added)(citing Purola, 73 Ohio App.3d 306;

Davis, 77 Ohio App.3d at 263-64)(other citations omitted).

It is beyond dispute that courts considering direct contempt are not required to provide

the full panoply of constitutional rights normally attendant a potential loss of liberty; however,

there is clearly a split of authority regarding when and what rights may be curtailed. Those

Courts following Neff and Davis start from the premise that individuals facing a potential loss of

liberty are always entitled to due process of law. They permit summary contempt proceedings

only in a very narrow category of direct contempt cases: when the contempt occurs in the judge's

actual presence and creates an imminent threat to the administration of justice. They justify the

absence of notice and a hearing by reasoning that when contempt is committed in the judge's

actual presence, his/her personal knowledge of the facts necessary to support a contempt finding

obviates the need for further evidence. Cooke, 267 U.S. 517, 534-35 (citing Exparte Terry, 128

U.S. 289, 9 S.Ct. 77, 32 L.Ed. 405 (1888)). Additionally, by engaging in a contumacious act in

front of the court, a direct contemnor is said to have waived his constitutional right to notice and

an opportunity to defend. Neff, 20 Ohio App.2d 213, paragraph four of the syllabus. Those same

courts justify the imposition of summary punishment as necessary to "prevent a continuing

obstruction of justice." State v. Kilbane, 61 Ohio St.2d 201, 204, 400 N.E.2d 386 (1980), fn. 4.

As recognized by the U.S. Supreme Court in Cooke, however, when direct contempt does not

occur in the actual presence of the court, there is no justification for depriving alleged

contemnors of their rights. Cooke, 267 U.S. 517, 536-37 (citations omitted).

Admittedly, misconduct need not take place in the physical presence of the court to be

considered direct contempt. Local Union 5760, 172 Ohio St. 75, paragraphs two and three.

Nevertheless, as a practical matter, almost all direct contempts involve disruptive conduct

10

occurring in open court. In such instances, since the court does have personal knowledge of the

conduct, and immediate action is necessary to preserve the administration of justice, the

preconditions identified by the U.S. Supreme Court as sufficient to suspend constitutional due

process rights are satisfied. It is perhaps for this reason that many Ohio appellate courts have

simplified the analysis by merely equating direct contempt with summary contempt. As the Fifth

District Court of Appeals explained in Lodico:

"A prevalent misconception exists even now that direct contempt is synonymous withsummary (i.e., without due process) contempt; or, to state it differently, that every directcontempt justifies a summary sanction; or, to again state it differently, that where thecontumacious act is committed `within the presence of the court,' it need not constitutean `imminent threat to the administration of justice' to justify a summary sanction.Assuming a contumacious act qualifies as a direct contempt, however, is simply aprecursor to one of the essential issues of present-day contempt law in America -whether the circumstances of the direct contempt include both essential elementsof summary contempt: (a) the `judge's personal knowledge' and (b) the `imminent

threat to the administration of justice.' This is the issue that must ultimately be resolved,because it determines whether summary sanction is justified or whether a multitude ofconstitutional rights are applicable in a due process hearing."

Lodico at ¶ 42 (quoting In re Contemnor Caron, 110 Ohio Misc.2d 58, 89-90, (C.P. 2000)).

It is perhaps also due to the rarity of the factual circumstances at issue herein that this

Court has never specifically addressed the question presented by this appeal: whether, in

cases of direct contempt where the judge lacks personal knowledge of the underlying facts, the

use of summary proceedings is constitutionally impermissible.6 The evolution of Ohio law

6 Dr. Feng also submits that the appellate court erred in affirming the trial court's use ofsummary contempt proceedings despite the fact that the child's absence did not affect theconduct of the CPO hearing, and thus, there was no imminent threat to the administration ofjustice - a fact which the court of appeals acknowledged. See 201 1-Ohio-4810, ¶ 44 ("The DRcourt conducted the CPO hearing mainly to ensure the son's welfare. To that end, the DR courtpermitted Feng to purge the contempt by producing the son so that the DR court could determinefor itself that the son was safe."). However, such an error results from a failure to apply the lawand not a conflicting interpretation of it.

11

governing the use of summary proceedings in cases of direct contempt can be summarized by a

review of a few pertinent cases:7

• In Hale v. State, 55 Ohio St. 210, 45 N.E. 199 (1896), this Court held that the judicialpower to punish as contempt "a wrongful act which interfere[s] with the [court's]exercise of its jurisdiction" is inherent to the courts and cannot be legislatively abridged.8Accordingly, courts cannot lose their ability to hold a litigant in contempt for actspunishable as direct contempt at common law, simply because a legislative enactmentmakes the same conduct also a criminal offense subject to more stringent due process

requirements if prosecuted thereunder.9

• In In re Lands, 146 Ohio St. 589, 67 N.E.2d 433 (1946), this Court differentiated betweendirect and indirect contempt and recognized that, when the legislature establishesprocedural requirements and limitations regarding the latter, the courts have a duty to

follow them (albeit in dicta).

7 Appellant recognizes that while she was found guilty of civil contempt (a classification she still

disputes), each of the cases cited relates to criminal contempt. However, for purposes of the

question presented by this appeal, it is a distinction without a difference. The classification ofcontempt as civil or criminal affects the standard of proof (clear and convincing versus beyond a

reasonable doubt), Brown v. Executive 200, Inc., 64 Ohio St.2d 250, 416 N.E.2d 610 ( 1980),

syllabus, and the elements of the offense (only criminal contempt requires a showing of scienter),

Midland Steel Products Co., v. U.A. W. Local 486, 61 Ohio St.3d 121, 127, 573 N.E.2d 98

(1991). However, even civil contempt of court contains an element of punishment (and in this

case could have resulted in indefinite jail time if indeed Dr. Feng lacked the ability to complywith the trial court's order as she contends), Brown, 64 Ohio St.2d at 253, thus, classification of

r-O„rP-,,,r aq civil or criminal does not affect a contemnor's entitlement to basic notice and an-,,--r- -- --opportunity to be heard, which is the issue contemplated by this memorandum. Mosier v.

Mosier, 5th Dist. No. 2008 CA 0103, 2009-Ohio-1195, ¶ 35 (citations omitted). See also, e.g.

Cincinnati v. Cincinnati District Council 51, 35 Ohio St.2d 197, 299 N.E.2d 686 (1973).

8 Notably, the concept of summary contempt was markedly different in 1896 than it is today.

Though the Hale Court refers to summary contempt, the contemnor in Hale - like the

contemnors in many other early cases - was afforded notice and a hearing on the charge. The

"summary contempt" at issue in Hale referred to the absence of an indictment and the denial of a

jury trial. 55 Ohio St. at 211-212.

9"Contempt proceedings are regarded as sui generis, and not criminal prosecutions ***." State

v. Timson, 38 Ohio St.2d 122, 311 N.E.2d 16 (1974), paragraph three of the syllabus. It has

long been recognized that even indirect contempt is not subject to the same strict proceduralrequirements applicable to criminal cases, so long as the contemnor is afforded notice of thecharges and "a reasonable opportunity to meet them by way of defense or explanation." Cooke,

267 U.S. at 537 (citing Exparte Savin, 131 U.S. 267, 9 S.Ct. 699, 33 L.Ed. 150 ( 1889)).

12

• In Weiland v. Industrial Commission, 166 Ohio St. 62, 139 N.E.2d 36 (1956), this Court

found that summary contempt proceedings against an attorney for failure to timely appearin court were improper, since "part of the alleged misconduct was ... not [committed] inor near the court," and therefore constituted indirect contempt for which the attorney wasentitled to notice and an opportunity to defend.

• In Local Union, 172 Ohio St. 75, 173 N.E.2d 331 (1961), this Court held that directcontempt is not limited to acts committed in the physical presence of the court but alsoincludes acts committed in its constructive presence.

• In State v. Kilbane, 61 Ohio St.2d 201, 400 N.E.2d 386 (1980), this Court held that it iswithin a court's sound discretion "to determine the kind and character of conduct whichconstitutes direct contempt of court."

Of these cases, only Weiland involved a trial court's failure to conduct a hearing where the judge

lacked personal knowledge of the misconduct;10 however, the decision in Weiland turned on the

Court's determination that (at least a portion of) the conduct at issue was indirect contempt.

It is also telling that none of the above cases (and in fact, no case decided by this Court)

cites to the U.S. Supreme Court's decisions in Oliver and Cooke, i.e., the primary cases.relied

upon by Neff and Davis, with respect to due process rights in contempt cases. Instead, this

Court's cases assessing courts' summary contempt powers have focused on the premise that,

since the power is inherent to the courts and not conferred by the legislature, it cannot be taken

away by virtue of statutory enactment. Hale, 55 Ohio St. 210, paragraph one of the syllabus.

Having never considered a constitutional challenge to the use of summary contempt

proceedings (as it is presently defined, i.e., where judgment and sentence is pronounced without

first providing the contemnor with notice and an opportunity to be heard) in a case of direct

contempt occurring outside of the court's physical presence, this Court has never addressed the

split in authority between the appellate courts of this state which construe the broad dicta in Land

10 As noted above, the contemnors in Hale, Lands and Local Union 5760 all were afforded both

notice and an evidentiary hearing on the charges. While the contemnor in Kilbane was punished

summarily, the contempt at issue occurred in open court and in the actual presence of the judge.

13

and Local Union 5760 as permitting summary proceedings in all cases of direct contempt at the

discretion of the judge, and those courts which have held summary contempt is but a subcategory

of direct contempt permissible only if: (a) the court has personal knowledge of the underlying

facts; and (b) immediate action is necessary to protect the administration of justice.] I

Moreover, adopting a bright line test would be prudent. Because presiding courts have

discretion to determine whether contemptuous conduct is direct or indirect regardless of whether

it is committed in the judge's physical presence, Kilbane, 61 Ohio St.2d 201, paragraph one of

the syllabus, judges presiding in appellate districts which recognize no procedural distinction

between direct contempt committed in their actual presence versus direct contempt committed in

their constructive presence are free to arbitrarily grant or deny similarly-situated litigants due

process protections, depending solely on their subjective whim. By contrast, in those appellate

districts following the constitutional limitations set forth in Oliver and Cooke, the right to notice

and opportunity to be heard turns on an objectively discernible fact (i.e., whether the judge

personally observed the disruptive conduct), resulting in uniform and consistent treatment.

By accepting jurisdiction in this case, this Court has an opportunity to eliminate the

'-'disparate treatment among similarly-situated litigants and enforce the long-articulated principie

that summary contempt is an "awesome power" that should be wielded sparingly, only when

absolutely necessary to preserve the administration of justice. Cincinnati v. Cincinnati District

11 Nevertheless, this Court has suggested that, if presented with a case on point, it would issue abright line rule prohibiting summary proceedings in all cases of direct contempt except thoseinvolving conduct committed in the physical presence of the judge which cause an immediate

disruption to the proceedings. See Disciplinary Counsel v. Gaul, 127 Ohio St.3d 16, 23, 2010-

Ohio-4831 (citation omitted)("[T]o find that contemptuous conduct has occurred outside the

presence of the court, the court must hold a hearing and analyze record evidence."). Accord

State ex rel. Seventh Urban, Inc. v. McFaul, 5 Ohio St.3d 120, 122, 449 N.E.2d 445(1983)("Where judges have no personal knowledge of the alleged act of contempt because of itscommission beyond the court's actual physical presence, the procedure outlined in R.C. 2705.03,

..: should be strictly adhered to." (emphasis added)). ("Should be" is a derivative of "shall".)

14

Council 51, 35 Ohio St.2d 197, 213, 299 N.E.2d 686 (1973) (Brown, J., dissenting). See also In

re Little, 404 U.S. 553, 92 S.Ct. 659, 30 L.Ed.2d 708 (1972).

CONCLUSION

This case clearly presents a question of constitutional magnitude which has never been

directly addressed by this Court. Moreover, it is a question of law that is not only in conflict

among the multiple appellate districts of this state but one which even courts within single

appellate districts often interpret inconsistently. Thus, even if not constitutionally required, this

Court should exercise jurisdiction over this case. This Court has an opportunity to adopt a bright

line rule which would not only eliminate unintentional, disparate treatment of similarly-situated

contemnors in this state, but which would also reduce intentional abuses of judicial power made

for the sole purpose of circumventing due process rights. By mandating compliance with due

process safeguards in all cases of contempt except those in the objectively discernible category

of contempt actually witnessed by the judge, any temptation by a judge personally offended by a

litigant's conduct to retaliate with impunity simply by characterizing the contumacious conduct

as "direct" would be eradicated. Accordingly, Appellant respectfully requests that this Court

accept jurisdiction of this appeal.

Respectfully submitted,

WILLIAM T. WGU^ER, ESQ. (#0022271)1340 Sumner AvenueCleveland, Ohio 44115(PH) 216-781-7777(FX) 216-781-0621wwuliger@wtwuligerlaw.comAttorney for Lu-Jean Feng

15

CERTIFICATE OF SERVICE

This is to certify that a true copy of this Memorandum in Support of Jurisdiction wasmailed first class, postage pre-paid, this I ( day of January, 2012 to counsel for Appellee BruceBerger: Joseph G. Stafford, Esq. and Gregory J. Moore, Esq., at Stafford & Stafford Co. LPA, 55Erieview Plaza, 5`h Floor, Cleveland, Ohio 44114; to Cuyahoga County Prosecutor Bill Mason,Esq., 9th Floor Justice Center, 1200 Ontario Street, Cleveland, Ohio 44113; and to Guardian ad

Litem Barbara Belovich, 635 West Lakeside Ave., Suite 605, Cleveland, OH 44113.---,

WILLIAM T. WULIGER, ESQ. (#0022271)Attorney for Lu-Jean Feng

APPENDIX

QjCourt of AppeaY.5 oEIGHTH APPELLATE DISTRICT

COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINIONNo. 95749

N RE: CONTEMPT OFLU-JEAN FENG

In the matter styled:Bruce E. Berger, Plainfiff-Appellee

vs.Lu-Jean Feng, Defendant-Appellant

JUDGMENT:AFFIRMED

Civil Appeal from theCuyahoga County Court of Common Pleas

Domestic Relations DivisionCase Nos. D-279920 and D-333284

BEFORE: Rocco, J., Blackmon, P.J., and Stewart, J.

RELEASED AND JOURNALIZED: September 22, 2011

HPU0738 FG032 1

Lr ZGZU37

e

ATTORNEYS FOR APPELLANT

^^ r?

William T. WuligerThe Brownwell Building1340 Sumner CourtCleveland, Ohio 44115

Joyce E. Barrett800 Standard Building1370 Ontario StreetCleveland, Ohio 44113

Michael J. MaillisPerantinides & Nolan Co., L.P.A.300 Courtyard Square80 South Summit StreetAkron, Ohio 44308

ATTORNEYS FOR APPELLEES

For Bruce E. Berger

Joseph G. StaffordGregory J. MooreStafford & 1°Jtaf vrd r,^o., L'.P•A•55 Erieview Plaza, 5t' FloorCleveland, Ohio 44114

For Cuyahoga County Domestic Relations Court

William D. MasonCuyahoga County Prosecutor9t' Floor Justice Center1200 Ontario StreetCleveland, Ohio 44113

vai)i 38 P50322

-n-

For Guardian ad litem

Barbara A. BelovichKronenberg & Belovich Law, LLC

Suite 605Cleveland, Ohio 44113

,6L

d°ILED AN:? JOJRAdALlZEDPE R N-PP.,LI. 20- (C)

ct.ea GoF ril^rc^^9'1 asrr=v ^ NWFW:l1 s

--------------_ D".P.

RECEtVED F®R FILING

SFP26 2011

8 W03 23

-1-

KENNETH A. ROCCO, J.:

Defendant-appellant Dr. Lu-Jean Feng appeals from the order entered by

the Cuyahoga County Court of Common Peas, Domestic Relations Division

judge (the "DR court") that found her in contempt for failing to abide by prior

court orders that were issued with respect to both a petition for domestic

violence and the terms of a Shared Parenting Plan ("SPP").

Feng presents five assignments of error. She argues the judge that issued

the contempt order lacked jurisdiction to do so, the DR court did not permit her

an opportunity to present a defense, the order is not supported by the evidence,

the DR court made evidentiary rulings that denied her due process of law, and

the purge condition was an "impossible" one with which to comply.

Upon a review of the record, this court finds none of Feng's arguments has

merit. The trial court's order, consequently, is affirmed.

The original underlying case, assigned DR-279920, commenced in 2001,

when Feng's ex-husband, plaintiff-appellee Dr. Bruce Berger, filed a complaint

seeking a divorce. The case was assigned to Judge Timothy Flanagan, but, in

an order dated February 11, 2004, Judge Flanagan voluntarily removed himself

from the case and referred it to a visiting judge.

The visiting judge issued a final decree of divorce on December 29, 2004.

The decree incorporated an SPP for the couple's two minor children, i.e., a

V 0 L`^^^3 8 ;G6 0 35 24

-2-

daughter born in 1988 and a son born in 1994. By the SPP's terms, Berger was

the residential parent and had "final decision-making authority on all issues"

when the parties could not agree. In relevant part, the SPP provided that,

during the summer, the parents had alternating full-week possession periods,

the exchanges would be on Fridays at 6:00 p.m., and for all other times not

specifically set forth, Berger had possession of the children.

In February 2009, when the parties' son was 16-years old, Feng filed

motions to modify the allocation of parental rights and responsibilities and to

modify child support.' Berger responded by filing, inter alia, motions to show

cause and requests for attorney fees. The DR court appointed Barbara A.

Belovich to act as both guardian ad litem and attorney for the parties' son.

The matters proceeded to a trial before a magistrate, held over several

weeks in the autumn of 2009. Before the magistrate issued a decision, the

visiting judge became unavailable. Since Judge Flanagan had retired from the

court, the administrative judge reassigned the case to herself for a ruling on the

"judgment entry."

On June 17, 2010 the magistrate issued a decision denying Feng's

motions. Feng requested an extension of time to file objections to the decision,

which was granted.

'By this time, the parties' daughter was emancipated.

'dfl,09 7 ^8 moul ^25

-3-

On August 9, 2010, attorney William Wuliger filed a notice that he was

being substituted as the son's attorney in place of attorney Belovich. Wuliger

also filed a motion on behalf of the son to set aside the magistrate's report and

recommendations.

On August 13, 2010, Berger filed an "emergency motion for the immediate

return" of his son. Berger attached his affidavit, and asserted Feng failed to

return the parties' son on August 1, as required by the SPP.

On August 16, 2010, the visiting judge recused himself from the divorce

case. On August 19, 2010, the administrative judge issued a journal entry

noting the foregoing development, and assigning the divorce case to another

judge's docket "(via electronic Judge roll) to resolve all pending and future

issues." (Emphasis in original.) See Loc.R. 2(A)(3). On August 25, 2010,

attorney Wuliger, purporting to be acting as the son's attorney, filed an

objection to the assignment.

On August 26, 2010, the DR court issued a journal entry that granted

Berger's emergency motion for the return of his son. The court noted therein

that the existing SPP remained in effect "while the pending objections filed with

regard to the Magistrate's Decision of June 17, 2010 are considered." The DR

court ordered Feng to "immediately return the parties' minor child" to Berger's

possession.

u,, ^ ^T'tl^7^78 i^i>.J2

-4-

On September 8, 2010, Berger filed a Petition for a Domestic Violence

protection order (a "CPO") against Feng, which was assigned Case No.

DV-333284; this is the underlying case to the instant appeal. The

administrative judge issued an order "pursuant to Loc.R. 26(A)(3)" noting that

the divorce case had been "assigned" to a particular judge, and it was "in the

best interest of continuity" to "reassign Case No. DV 333284 to the docket" of

that same judge. Following an ex parte hearing, the DR court granted the

petition.

The September 8, 2010, CPO prevented Feng from having any contact

with Berger and their son, and also suspended her visitation rights with her

son. The order further required the son to attend the Hyde School in

Corinecticut. Berger had chosen this school for their son over Feng's opposition.

The CPO prohibited Feng from preventing or interfering with the son's

attendance at Hyde.

By September 16, 2010, Wuliger was representing Feng; he filed on her

behalf a petition for a CPO against Berger; this petition was assigned Case No.

DV-333399. The DR court made no determination on this petition.

On September 20, 2010, a full hearing began on Berger's domestic

violence petition. Since the substitution-of-counsel notice for the son was filed

without leave and because the son already had representation, the DR court

^V^31^. 3 8 POO 3

-5-

prohibited Wuliger from acting as the son's counsel. Wuliger thereupon stated

he was acting as Feng's attorney.

During this hearing, Feng testified that her son had been missing since

September S. Feng also testified that she did not know his whereabouts. At the

close of the hearing, the DR court nevertheless ordered Feng to produce the son

the next day, or Feng would be held in contempt of court.

The following day when proceedings resumed, the DR court issued a

written order requiring Feng to produce the son in court by 4:00 p.m. The

hearing proceeded. The son failed to appear.

At that time, the DR court found Feng in contempt and sentenced her to

three days in jail. The court found that Feng was deliberately withholding the

son's location. The court also required Feng to reappear on September 24, 2010

but told Feng she could purge the contempt by producing the son.

Feng's attorney, Wuliger, immediately filed the instant appeal. Feng's

sentence was stayed, and she was released from jail on September 22, 2010

after posting bond.2 The record indicates that the parties' son was located on

2 The record reflects that, in spite of the filing of the instant appeal, proceedingsresumed on September 24, 2010 with the son's whereabouts still unknown. Thehearing, however, halted when Feng's attorney accused the DR court of prejudging the

issues and asked for her recusal.

3 8 P60 3 2,- 8V&O 7

-6-

September 26, 2010 and that he returned to Berger's custody.3

The record further reflects that the outstanding issues in the underlying

three cases could not thereafter immediately be resolved by the DR court

because Feng filed an affidavit of disqualification with the Chief Justice of the

Ohio Supreme Court on November 19, 2010. The supreme court denied the

application on February 13, 2011.

Feng appeals from the contempt finding in DV-333284 and presents five

assignments of error.

"I. Because the trial court was improperly assigned to this case,

the contempt order issued was voidable.

"II. The trial court abused its discretion in holding Appellant in

summary contempt with no opportunity to present a defense.

"III. The evidence was insufficient to support the trial court's

contempt finding and/or the contempt finding was against the manifest

weight of the evidence.

"IV. The trial court abused its discretion vis - a- vis erroneous

evidentiary decisions which effectively denied Appellant her

constitutional right to due process of law.

30n October 29, 2010, despite his status as Feng's attorney, Wuliger filed apetition in this court for a writ of habeas corpus on the son's behalf. See App. No.

95941.

,;7u8 Pu03j9

-7-

"V. The trial court abused its discretion in ordering a purge

condition that was unreasonable and impossible to comply with."

Feng argues in her first assignment of error that, because her divorce case

was originally assigned to a particular judge of the DR court, the divorce case

should have been transferred to his successor, rather than assigned again by

electronic roll. She contends the new assignment violated the Ohio Supreme

Court Rules of Superintendence and the Local Rules of the Cuyahoga County

Domestic Relations Court. Based on this contention, Feng maintains that the

DR court that presided over the instant case was never properly assigned and,

as a result; its judgment is voidable. Feng's argument is rejected for the

following reasons.

First, Feng filed her notice of appeal only from the contempt citation. That

p;tat.;n„ wa-, ; .qenPrl in DV-333284. not in the underlvina divorce case. This court

lacks jurisdiction to rule on matters not set forth in the notice of appeal. App.R.

12(A)(1)(a); see also, Myers v. Myers, Muskingum App. No. CT2005-0005, 2005-

Ohio-7040.

Second, the record reflects the administrative judge complied with the

local rules of court in dealing with Berger's petition. Loc.R. 26(A)(3) provides:

"A Petition for Domestic Violence which is being filed post-decree shall be

assigned to a new judge and new case number at the time of filing. **^ the ex

uu^^^8 U330

-8-

parte hearing on the Petition for Domestic Violence shall be before the judge who

has continuing jurisdiction over the divorce/legal separation unless that Judge

is unavailable." (Emphasis added.)

Berger's petition in the instant case received a new case number and was

assigned to the administrative judge. The administrative judge then determined

that Berger's petition, DV-333284, should be assigned for hearing to the same

judge to whom the underlying divorce case had been assigned. Since this

procedure complied with the local rules, Feng's argument fails.

Third, the record reflects Feng never objected to the assignment, either in

the underlying divorce action or in the instant case. Wuliger filed an objection

in the divorce case, but it purported to be only on the son's behalf; Wuliger did

not at that time represent Feng.

T i„dPr t.hace circumstances. Fena waived the argument she presents in her

first assignment of error. Buttolph v. Buttolph, Wayne App. No. 09CA0003,

2009-Ohio-6909, ¶13-14. It is, accordingly, overruled.

Feng next argues that the DR court erred by failing to afford her any

opportunity to present a defense to the contempt citation. In so arguing, Feng

asserts the DR court wrongly deemed the matter to involve "direct" contempt,

when it could only have been indirect contempt. Both the argument and the

assertion are misplaced.

138 i0i331

-9-

Contempt is defined as a disregard of, or disobedience to, an order or

command of judicial authority. State v. Flinn (1982), 7 Ohio App.3d 294, 455

N.E.2d 691. This court cannot reverse a finding of contempt by a trial court

unless that court abused its discretion. State ex rel. Ventrone v. Birkel (1981),

65 Ohio St.2d 10, 417 N.E.2d 1249.

An abuse of discretionconsists of more than an error of judgment; it

connotes an attitude on the part of the trial court that is unreasonable,

unconscionable, or arbitrary. Rock u. Cabral (1993), 67 Ohio St.3d 108, 616

N.E.2d 218. In applying this standard of review, an appellate court is not free

to substitute its judgment for that of the trial court. In re Jane Doe 1 (1991), 57

Ohio St.3d 135, 566 N.E.2d 1181, citing Berk v. Matthews (1990), 53 Ohio St.3d

161, 559 N.E.2d 1301.

nNn

••• •• --q41

-29

1 -2(Yl

-0-Ohio-6166, ¶9-10,

In,

Lrauss u. Strauss, vi.r.,.

y, ^ ^ 0

^J a....,gu^irr• • -- - . ..

this court recently distinguished direct and indirect contempt as follows:

"A court may find the offending party in contempt for either direct or

indirect actions that constitute disobedience to an order. Pirtle v. Pirtle, 2nd

Dist. No. 18613, 2001-Ohio-1539. While a direct contempt occurs within the

court's presence or with the court's personal knowledge of facts relating to the act,

indirect contempt is `misbehavior that occurs outside the actual or constructive

presence of the court.' Id. One accused of indirect contempt is entitled to a

H1O 738 N 3 32

-10-

'hearing on the charge, at which the court must investigate the charge, hear any

answer or testimony that the accused makes or offers, and then determine

whether the accused is guilty.' Id.

"Although punishment is inherent in contempt, courts will categorize the

penalty as either civil or criminal based on the character and purpose of the

punishment. In re J.M., 12th Dist. No. CA2008-01-004, 2008-Ohio-6763, citing

Brown v. Executive 200, Inc. (1980), 64 Ohio St.2d 250, 416 N.E.2d 610. While

criminal contempt is characterized by an unconditional prison sentence, civil

contempt is marked by remedial or coercive punishment, doled out for the

`benefit of the complainant.' Id." (Emphasis added.)

The importance of classifying the types of contempt is thus the effect the

classification has on the rights of the contemnor. Direct contempt of court occurs

a coi , ro^ ^+A,l +n thP rm nrt, it.Gelf that a finding mav occur summarily;inaways

the court is not required to deal with direct contempt by providing the contemnor

with a hearing. In re Purola (1991), 75 Ohio App.3d 306, 596 N.E.2d 1140.

In contrast, indirect contempt of court does not occur in the presence of the

court, and a hearing is required to provide the contemnor with the opportunity

to explain his actions. Furthermore, if the indirect contempt is criminal in

nature, then intent to defy the court must be proven beyond a reasonable doubt.

Brown v. Executive 200, Inc.

^i'igI Y i 3 8^ t'GU.333

-11-

A sanction for civil contempt allows the contemnor to purge himself of the

contempt. Tucker v. Tucker (1983), 10 Ohio App.3d 251, 461 N.E.2d 1337. Once

the contemnor complies with the court's order, the purpose of the contempt

sanction has been achieved and the sanction is discontinued. Cleveland v.

Ramsey (1988), 56 Ohio App.3d 108, 110, 564 N.E.2d 1089.

In this case, the DR court specifically found Feng to be in "direct, civil

contempt" for failing to ensure the son came to the CPO hearing. The DR court

conducted the CPO hearing mainly to ensure the son's welfare. To that end, the

DR court permitted Feng to purge the contempt by producing the son so that the

DR court could determine for itself that the son was safe.

Since the DR court found Feng to be in direct civil contempt, it was not

required to conduct a hearing to permit Feng to present a defense, and did not

fl^ an Rrnynn. n F'rpcu.ti.no 2(7n Tnc.CLUU.7C 163 U1Jl.icbiVil lu luuau^, vv uv t.... +^•.^....•.. ..• -----.---____ -_

Feng's second assignment of error, accordingly, also is overruled.

Feng's third and fifth assignments of error present related issues;

therefore, they will be addressed together.

In her third assignment of error, Feng argues the DR court's contempt

finding lacked an adequate evidentiary basis. In her fifth, she argues that the

"purge condition," i.e., that she produce the son for the second day of the CPO

hearing, was "impossible," because she testified she did not know his

t ' D L^73 ^ PG0 33 4

-12-

whereabouts. These arguments are unpersuasive.

A finding of direct, civil contempt must be based upon clear and convincing

evidence. Id. Feng testified that she had custody of the parties' son for the

summer of 2010, and she admitted that she failed to return the son to Berger on

August 1, 2010, as required under the SPP's terms and the June 17, 2010

magistrate's order. Feng also admitted she failed to return the son to Berger as

required by the DR court order of August 26, 2010.

Feng also testified the son was at her home on September 8, 2010. Feng

claimed that he simply "disappeared" sometime in the afternoon of that day.

Although she admitted receiving text messages from him, she further claimed

she "did not know where he was."

The DR court, however, found Feng's credibility wanting. Other than

in^o=r..,,,..=.^ ;,, s, 0,o., r,.,=..,., ...,...._ thepolice abrnit t.ha so„'c Gunnosed disanbearance, Fena had done

nothing else to locate him and continued to go to work as usual. In light of

Feng's complete lack of concern over her son's whereabouts, and the fact that at

that point, he had been missing for twelve days, the DR court found Feng's

assertion that she could not secure his presence simply unbelievable.

This court cannot substitute its judgment on matters of credibility.

Montgomery u. Montgomery, Scioto App. Nos. 03CA2924 and 03CA2925, 2004-

Ohio-6926, ¶25. Since the DR court's contempt finding is supported by clear and

-13-

convincing evidence in the record, Feng's third assignment of error also is

overruled.

With respect to the punishment imposed, the DR court afforded Feng the

opportunity to purge herself of contempt merely by bringing her son to the CPO

hearing. Feng, as the contemnor, "carried the keys of her prison in her own

pocket," since the court advised her she would be freed if she agreed to produce

her son as so ordered. Id.

In contempt proceedings, a reviewing court places great reliance upon the

discretion of the judge, both in her finding of contempt and in the penalty

imposed. Offenberg v. Offenberg, Cuyahoga App. Nos. 78885, 78886, 79425 and

79426, 2003-Ohio-269, ¶77, citing Arthur Young v. Kelly (1990), 68 Ohio App.3d

287, 294, 588 N.E.2d 233. For the same reason this court determines the finding

; G-unnnrt.ed bv the evidence in the record, the DR court's purge condition cannot

be found to constitute an abuse of discretion. Montgomery, ¶47.

Accordingly, Feng's fifth assignment of error also is overruled.

Feng argues in her fourth assignment of error that the DR court wrongly

excluded during the CPO hearing evidence that was crucial to her defense

against Berger's petition.4 This argument, however, bears no relation to her

4The record reflects the court refused to permit Feng, during her cross-examination of Berger, to enter into evidence email communications she claimed werefrom her son to Berger, and to play a surreptitiously-recorded "mediation" held

ypil'_; 7 ^ ^ ^^ ^1 3 3 6

-14-

citation for contempt, which is the only issue before this court. Therefore, this

court declines to address it. Feng's fourth assignment of error is overruled.

The DR court's order finding Feng in direct, civil contempt is affirmed.

It is ordered that appellee recover from appellant costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate be sent to said court to carry this

judgment into execution.

A certified copy of this entry shall constitute the mandate pursuant to

Rule 27 of the Rules of Appellate Procedure.

KENNETH A. ROCCO, JUDGE

PATRICIA ANN BLACKMON, P.J., CONCURS;n/rEL.ODY J. STEWART, J., DISSENTS(SEE ATTACHED DISSENTING OPINION)

MELODY J. STEWART, J., DISSENTING:

I respectfully dissent with the majority decision to affirm. I find that the

second assignment of error has merit and would, accordingly, reverse the finding

of contempt.

Direct contempt is that which occurs in the presence of the court and is

between the parties, their son, and a family friend. Feng contends the evidence atissue was admissible under Evid.R. 801(D)(2)(a), 803(5)(a), and R.C. 2710.03(B).

-15-

immediately punishable. State u. Belcastro (2000), 139 Ohio App.3d 498, 501,

744 N.E.2d 271. Indirect contempt occurs when a party engages in conduct

outside the presence of the court that demonstrates a lack of respect for the court

or its lawful orders. If the contemptuous action occurs outside the presence of

the court, the court must afford the accused a hearing, at which he will have an

opportunity to be heard, by himself or through his counsel. R.C. 2705.03.

The parties dispute the nature of Feng's contempt: the court and Berger

believe Feng engaged in direct contempt for failing to have the child appear at

the September 24 hearing and could be summarily punished; Feng claims that

the contempt was related to a court order to have the child appear; hence, it was

an indirect contempt that could be punished only after a hearing.

Although the court had entered an order requiring Feng to produce the

;.,l-onrlAratnrnarra}FPnQ'tnbrinQ'thechildtocourt.

A sanction imposed for civil contempt is remedial or coercive in nature and is

imposed for the benefit of the complainant. Brown v. Executive 200, Inc. (1980),

64 Ohio St.2d 250, 253; Bierce v. Howell, 5th Dist. No. 06 CAF 05 0032,

2007-Ohio-3050, ¶8. In such a case, notice that apprises the alleged contemnor

of the nature of the charge against him so that he may prepare a defense is

sufficient for due process purposes. Cincinnati v. Cincinnati Dist. Council 51,

Am. Fedn. of State, Cty. & Mun. Employees (1973), 35 Ohio St.2d 197, 203, 299

v JL=0 i 3 8 RJ0 "-)' 3 ^

-16-

N.E.2d 686. Any sanction imposed for civil contempt must afford a contemnor

the right to purge himself of the contempt. Id.

On September 21, the court issued a written order requiring Feng to

produce the child by 4 p.m. When the child did not appear by that time, the

court found Feng in contempt and sentenced her to three days in jail on grounds

that Feng was deliberately withholding the child's location. The court also

required Feng to appear before the court on September 24, but told Feng that

she could purge the contempt by producing the child.

The court's act of placing purge conditions in its order demonstrates that

it found Feng in contempt in order to coerce her into producing the child. Brown,

64 Ohio St.3d at 254. Although it characterized Feng's contempt as "direct," that

was a misnomer. Had the court intended simply to punish Feng for a direct

,....M,....,,.,4- ;1- .,,,,,1.^1 ,^.,4 lio.ro allncxTnrl 1'^Pr to n77ro'P. t}1P, ['.nntemDt. I^lamlv, bvi,vitociiiNn, 10 vvvuiu avu

giving Feng the opportunity to purge, the court was coercing her into giving up

whatever knowledge she had on the child's whereabouts, thus making it an

indirect contempt.

It follows that Feng was entitled to a hearing before a finding of contempt

and being jailed. See State v. Local Union 5760, United Steelworkers of Am.

(1961), 172 Ohio St. 75, 79, 15 0.O.2d 133, 173 N.E.2d 331 (before making a

finding of indirect contempt, hearing, and notice are required). The court's

-17-

failure to afford the necessary hearing was a violation of Feng's right to due

process and is reversible error.

Y^LICj 7 38 P90340

(foutit of appeatg of ®I)io, (figotIj

County of CuyahogaGerald E. Fuerst, Clerk of Courts

is lgtrttt

In re Contempbof Lu Jean Feng

Appellant COA NO. LOWER COURT NOS.95749 D-279920 and D-333284

COMMON PLEAS COURTDOMESTIC RELATIONS DIVISION

MOTION NO. 448095

Date 11/09/2011

ourna n ry

This matter is before the court on appellant's application for en banc consideration. Pursuant

to App.R. 26, Loc.App.R. 26, and McFadden u. Cleveland State Univ., 120 Ohio St.3d 54, 2008-Ohio-

4914, 896 N.E.2d 672, we are obligated to resolve conflicts between two or more decisions of this court

on any issue that is dispositive of the case in which the application is filed.

Appellant has not demonstrated any conflict between the panel's decision and any other

decision of this court on a legal issue. The determination whether a contempt is direct or indirect is a

discretionary decision, not a legal one. To the extent that appellant urges that a hearing was required

because the facts were not.within the court's knowledge, she asserts an error, not a conflict.

Therefore, appellant's application for en banc consideration is denied.

z r^ MARY EIL EN KILBANE, ADMINISTRATIVE JUDGERI

Concurring:

PATRICIA A. BLACKMON, J.,FRANK D. CELEBREZZE, JR.,,J.,COLLEEN CONWAY COONEY, J.,EILEEN A. GALLAGHER, J.,SEAN C. GALLAGHER, J.,LARRYA. JONES, J.,KENNETH A. ROCCO, J.,MELODY J. STEWART, J., andJAMES J. SWEENEY, J.

Dissenting:

MARY J. BOYLE, J.

REOESVED FOR FIL9NG

NOV092011GER^L.G l ^^.FiST

OLERK OF 1^iE ^T^OFAPPeALSBY -DEP.

Recused:

KATHLEEN ANN KEOUGH, J.

Court of Appeals of Ohio, Eighth District

County of CuyahogaGerald E. Fuerst, Clerk of Courts

IN RE: CONTEMPT OF LU-JEAN FENG

Appellant COA NO. LOWER COURT NO.95749 CP D-279920

CP D-333284

DOMESTIC RELATIONS

MOTION NO. 448094

Date 12/05/11

Journal Ent

Motion by Appellant for reconsideration is denied.

RECEIVE0 FOR, FU6^^

G E i'if\ LCLERK OF THBY.

Presiding Judge PATRICIA A. BLACKMON,Concurs

Judge MELODY J. STEWART, DISSENTS

CA10095749 71497425

11Il11111I1111I11I1i1l 1i1111fi^1111l1111I11i^^^ INP116 U 1 7 4

Court of Appeals of Ohio, Eighth DistrictCounty of Cuyahoga

Gerald E. Fuerst, Clerk of Courts

IN RE: CONTEMPT OF LU-JEAN FENG

Appellant

Date 12/16/11

COA NO. LOWER COURT NO.95749 CP D-279920

CP D-333284

DOMESTIC RELATIONS

MOTION NO. 449632

Journal Entry

Motion by Appellant to certify conflict is denied.

REGEIVr;p FOR H9 ING

PlFf": 1 t; pft99,.9.r F ., L4if

GERALD E. FUERSTCLERK QF HC GOUR OF A PE LSBY C ' Z.2-^--G. .^^.[)EP.

Presiding Judge PATRICIA A. BLACKMON,Concurs

Judge MELODY J. STEWART, DISSENTS

CA10095749 71672003

11lI11I ^1111111i1i I1111 IN 11i111l^^111i111111I 181'_ti!

COURT OF COMMON PLEASDTVTSTON OF DOMESTIC RELATTONS

CUY'AHOGA COUNTI'', OHIO

BRUCE E, BERGER

Petitioner

- Vs. -

Case Nb: W710 333284

-------

Judge; LESLIE ANN CELEBREZZE

LTJ-JEAN FENG ,7UDGNtENT ENTRY

Respondent

This matter came before the court upon Bruce Berger's Petition I'or Domestic Violence

(#333284) :Eiled on September 16, 2010. Trial was held on Septembcr 20 and 21, 2010, During

trial on September 20, 2010, the court ordered Lu-Jcan Feng from the bench to produce minor

child Bvan Berger at the or.zset of trial the, following day. She failed to produce ininor child Evan

Berger.

As a restilt, Lu-Jean Fen.g was court ordered pursuant to this court's .luclgment Entry

signed and journalized September 21, 2010 to procluce minor child Evan Berger by 4:00 this

same day. She failed to produee minor ehilcl.Evan Berger.

At 4:00 p.m., Lu-Jcan Feng was present in court with counsel and informed.the court that

she vvas riot going to abide by tlae court's order. The court cloes not rincl Lu-Jean Feng's

testimony credible as Co why she is uriab.le to com.ply. The court 'flnds that Lu-Jean L'eng is

deliberately withholding tlie location of the child ancl purpose'fully not producing liim to the court

as ordered.

Tlierefore, tae court finds that Lu-Jean Feng is in direct, civil contempt of Court for her

I'ailure to comply with this court's orcler requiring her lo produce minor chilcl this day. September

21,2010by4:00p.m.

IT IS THEREBORE ORDERED, ADJUDGED AND DECREED that, LU-JEAN

FENG, is hereby renianded into the custody of the Cuyahoga County Sheriff until she agrees to

comply with the court order and turn over minor child Evan Berger.

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that, in the event there

is no space-for LU-JEAN FENG at the Cuyahoga County Jail, the Cuyahoga County SlierifPs

Department sl7all transport LU-JEAN FENG to an alternate jail (either a suburban or adjoining

county jail) and all costs of incarceration shall be billed to the Cuyahoga County SherifPs

Department,

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that, in the event the

Obli or LU-JEAN FENG requires medical.attention, all costs and transportat'ron for treatinent

sh2ll be the responsibility of the Cuyahoga County SherifPs Department directly,. or in an

emergency medical situation, costs shall be paid by way of reimbursement to the alternate jail

facility.

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that said jail sentence

shall commence on September 21, 2010 at 4:05. LU-JEAN FENG shall be dircctly transportecl

in three days, (Friday September 24, 2010) for the purpose of appearing in front of Judge Leslie

Ann Celebrezce, Courtroom 4, Old Court lIouse, l W. Lakeside, Cleveland, Ohio 44113.

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the LU-JEAN

FENG may purge this contempt by proclueing minor child Evan Berger ancl shall be clireetly

released from custody of the Cuyahoga County Sheriff's Department.

IT IS SO O'RDERED.

Court costs to be paicl by LU-JEAN FENG.

(q,zl, 1(-,THE 6TATE OF nHIG 'i jJpLG"F;l;LDe,FUf°ul E,ruyzho.-Couniy p S5. 'fhiL CCUnT QF C1154i,M10AI Pi

09/21/20) 0^ t -•': . :: A ^ ^ II - I -A11^ ^ ^

^13^ t V3 ^^^^^-....r--^----- ..__-

p,, io.^ . -..1

I-IS3!'r7.DOC F! I'20p>i ^:. C-.E

i

!

CELF_rfiiA,k^;Ei C,r+t.s 1=1k„(IsJa,,

^CI0